The role of the particular
Three distinct functions, often confused. They separate the general, the particular and the technical.
Supplementing the general, by adding what it does not provide for.
Refining the general, by choosing among options it leaves open.
Departing from it, by setting aside a provision unsuited to the project.
The third function is the most delicate, since it presupposes that the departure is intended, stated and enforceable.
A departure resulting from an unnoticed contradiction is not a departure; it is an inconsistency.
| Document | Reach | Rank in case of conflict |
|---|---|---|
| Particular clauses | Specific to the contract | Prevail |
| General clauses | Common to all contracts | Yield |
| Written hierarchy | The order stated in the contract | Settles it without argument |
The hierarchy must be written down
This is the central point of this article. The particular prevails over the general.
Where two contract documents contradict each other, it must be clear which prevails.
That hierarchy cannot be inferred. It must appear expressly in the particular contractual clauses.
A usual hierarchy puts the particular before the general, and contractual documents before technical ones, but nothing compels that order and a project may justify another choice.
What matters is not the order adopted, but that it is written down. A package with no declared hierarchy leaves the decision to a judge, long afterwards.
The annexes must feature in it, notably the drawings, whose contradiction with the text is the commonest conflict.
The commonest conflicts
Four situations, all avoidable.
The drawing contradicts the description. A dimension, a material or a height differs between them.
The particular reproduces the general while altering it, creating a hybrid version where it is no longer clear whether it departs or merely miscopies.
Two particular clauses contradict each other, generally because they were drafted by different parties.
The schedule describes something other than the technical clauses, covered in the article on what an item must contain.
The second case is the most insidious, since it gives the appearance of coherence.
The method of prevention
Four points, before issuing the package.
Write the hierarchy of documents into the particular contractual clauses, annexes included.
Do not copy the general into the particular. Either refer to it or depart from it expressly, but do not reproduce it.
Frame departures as such, identifying the provision set aside.
Have the package read by someone who did not draft it, the only effective way to detect internal contradictions.
What the hierarchy does not resolve
Two limits to know.
It does not resolve omissions. A point nobody has addressed is not settled by a rule of precedence, and it falls to the mechanisms covered in the article on queries and corrections.
It does not resolve ambiguity. Two documents may be compatible and vague, which is a drafting problem rather than one of precedence.
What this means for a professional
Four rules.
Declare the hierarchy in writing, without assuming it goes without saying.
Include the annexes, particularly the drawings.
Draft departures by naming them, rather than simply writing something else.
Arrange a cross-reading, contradictions escaping whoever wrote them.
This article sets out a method of professional orientation. It reproduces no content from normative documents and does not constitute legal advice.